HomeMy WebLinkAbout18-531 SaggiomoPHONE: 717- 783 -1610
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ADVICE OF COUNSEL
April 30, 2018
To the Requester:
Ms. Christina Saggiomo
Dear Ms. Saggiomo:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.00v
18 -531
This responds to your letters dated March 19, 2018, and March 26, 2018, by
which you re nested an advisory from the Pennsylvania State Ethics Commission
( "Commission's.
Issue: Whether, in your former capacity as a Project Director for the City of
PFi delphia ( "City ") Office of the Chief Administrative Officer, you would be considered
a "public official" or "public employee" subject to the Public Official and Employee Ethics
Act C" thics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics
Commission, 51 Pa. Code § 11.1 et sse ., such that the restrictions of Section 1103(g) of
the Ethics Act would now be applicable to you.
Facts: You request an advisory from the Commission based upon submitted
afi cfslhat may be fairly summarized as follows.
Until March 2, 2018, you were employed as a Project Director for the City Office
of the Chief Administrative Officer. You have submitted a copy of a position description
{ "Position Description ") for your former position with the City Office of the Chief
Administrative Officer, which document is incorporated herein by reference. You state
that although the Position Description lists the title of your former position as Assistant
Chief Administrative Officer, the Position Description provides all of the details for your
former position as a Project Director.
The Position Description provides, in pertinent part, as follows:
Position Summary
The Assistant CAO will work as part of a small team focused
on managing projects to transform and modernize
government services. This position will be primarily
responsible for supporting transformation and process
improvement projects with research, analysis and
presentations. These projects touch departments throughout
the City and focus on measurable gains to create more
efficient and effective processes.
Sa iomo, 18 -531
pr�iT�, 2018
Page 2
Example projects include: Modernizing the City's purchasing
functions through process improvement, technological
updates and legislative change; revamping of the Capital
Projects process to increase speed of completion and lower
costs; implement revised City employee space standards
potentially saving significantly on leased costs and creating
more efficient use of space.
Duties and Responsibilities — What will I be doing?
• Problem solving — understanding current challenges
and possible solutions
• Data analysis — using simple excel skills to both
understand the problem and assess effectiveness of
proposed solution
• Communication — summarize projects /projects/
solutions in a way that is clear to many different
audiences throughout the City (usually in the form of a
PowerPoint deck)
• Project management -- provide support to senior staff
in implementing projects that align with top
Administration priorities
• Collaboration — work closely with CAO staff, other
teams and departments throughout the City, including
the Managing Director's Office and Finance
Department
Financial Analysis — conduct financial analysis such
as p resent value calculations, return on investment,
and cost benefit analysis for departments reporting to
the Office of the CAO; assist with financial requests
during the budget process and in other times
throughout the year
Position Description, at 1 -2.
You state that in your former position as a Project Director for the City Office of
the Chief Administrative Officer, your responsibilities included managing various
modernization projects focused on analyzing and transforming administrative functions
of the City government. You state that you also led cross - functional projects focused on
process improvement, technological updates, and legislative change. Your former
position with the City was not an elected or appointed position.
You have submitted a copy of an organizational chart ( "Organizational Chart") for
the City, which document is incorporated herein by reference. It is noted that per the
Organizational Chart and the Position Description, the Chief Administrative Of has
authority over the following City Departments, Offices, Bureaus, and Units: (1)
Procurement Department; l( Department of Records; (3) Office of Fleet Management;
(4) Human Resources and alent Unit; (5) Office of Administrative Review; 6) Bureau
of Administrative Adjudication; (7) Office of Innovation and Technology; (8 Office of
Performance Management; (9) Contracts Legislation Unit; (10) Departmen of Public
Property; and (11) Office of Open Data and Digital Transformation.
Spr�018 -531
Page 3
Based upon the above submitted facts, you pose the following questions:
(1) Whether, in your former capacity as a Project Director for the City Office of
the Chief Administrative Officer, you would be considered a "public official'
or "public employee" as those terms are defined in the Ethics Act, such
that upon termination of service with the City, you became a "former public
official or public employee" subject to the restrictions of Section 1103(g) of
Ethics Act; and
(2) If the restrictions of Section 1103(g) of the Ethics Act would now be
applicable to you, what would be considered your former governmental
body.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1 107('11) of
the Ethics Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 110700), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
The Ethics Act defines the term "public official' as follows:
§ 1102. Definitions
"Public official." Any person elected by the public or
elected or appointed by a governmental body or an
appointed official in the executive, legislative or judicial
branch of this Commonwealth or any political subdivision
thereof, provided that it shall not include members of
advisory boards that have no authority to expend public
funds other than reimbursement for personal expense or to
otherwise exercise the power of the State or any political
subdivision thereof.
65 Pa.C.S. § 1102.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
Spa giomo, 18531
April 30, 2018
Page 4
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
Spr018 -531
Page 5
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary-treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the persons own judgment as to the desirability of the
action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
Sa giomo, 18 -531
April it 30, 2018
Page 6
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies t -he Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04-002; Shienvold, pinion 4- T ; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsy v�ania has specifically consic Bred and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Qua lia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010 ), amended X2010 a. ommw. LE
$(F'a. Cmwlth. January 5, 010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010);
Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining tatus as a public
employee, as set forth in 51 Pa. Code § 1'1.1( "public employee ")(ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, pg., Reese /Gilliland, Opinion 05-
005.
With regard to your status in your former capacity as a Project Director for the
City Office of the Chief Administrative Officer, you are advised as follows.
In applying the Ethics Act's definition of the term "public official," the first portion
of the definition provides that a public official is a person who: (1) is elected by the
public; (2) is elected or appointed by a governmental body; or (3) is an appointed official
in the executive, legislative, or judicial branch of the Commonwealth or a political
subdivision of the Commonwealth. Muscalus, Opinion 02 -007. When the first portion of
the definition is met, status as a publics of icial subject to the Ethics Act is established,
unless the exclusion for members of purely advisory boards is applicable. Eiben, supra.
Based upon the submitted facts, in your former capacity as a Project Director for
the City Office of the Chief Administrative Officer, you would not fall within any of the
three categories above. Accordingly, you are advised that in your aforesaid former
capacity, you would not be considered a "public official" subject to the Ethics Act.
In applying the Ethics Act's definition of the term "public employee," the
necessary conclusion is that in your former capacity as a Project Director for the City
Office of the Chief Administrative Officer, you would be considered a "public employee'
subject to the Ethics Act and the Regulations of the State Ethics Commission.
It is clear that as a Project Director for the City Office of the Chief Administrative
Officer, you had the ability to take or recommend official action of a nonministerial
nature with respect to subparaggraph (5) within the definition of "public employee" as set
forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, your authority to: (1) manage
projects to modernize the City's purchasing functions through process improvement,
technological updates and legislative change; (2) manage projects to revamp the
Capital Projects process to increase speed of completion and lower costs; (3) manage
projects to implement revised City employee space standards, potentially saving
SaWiomo, 18 -531
April 30 ,2018
Page 7
significantly on leased costs and creating more efficient use of space; (4) conduct
financial analysis such as present value calculations, return on investment, and cost
benefit analysis for departments reporting to the City Office of the Chief Administrative
Officer; and (5) assist with financial requests during the budget process and in other
times throughout the year, would be sufficient to establish your status as a "public
employee" subject to the Ethics Act. The foregoing duties /authority would also meet the
criteria for determining your status as a public employee under the Regulations of the
State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee,"
subparagraphs (i) and (ii).
Consequently, upon termination of your employment with the City, you became a
"former public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(8) does not prohibit a former public official /public employee
from accepting a position of employment, it does restrict the former public official /public
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a er�son, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," "governmental body," and "governmental body
with which a public official or public employee is or has been associated" are specifically
defined in the Ethics Act as follows:
§ 1102. Definitions
Represent. To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"Governmental body with which a public official
or public emplo ee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
Sa gEomo, 18 -531
p-n 30; 2018
Page 8
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officiavp—ub iemployee himself,
Confidential Opinion, 93005, as well as a new governmental employer. Ledebur,
pinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public official/
public employee on invoices submitted by his new employer to the former governmental
body, even if the invoices pertain to a contract that existed prior to termination of service
with such governmental body. SShaa , Opinion 91 -012. However, if such a pre- existing
contract does not involve the unit where a former public employee worked, the name of
the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. AbramsANebster,
Opinion 95 -011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(g) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
officiallpublic employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official/public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official/public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90-OM-R.
Based upon the submitted facts, the governmental body with which you are
deemed to have been associated upon termination of your employment with the City,
hereinafter collectively referred to as your "former governmental body," consists of the
City Office of the Chief Administrative Officer in its entirety and all City Departments,
Offices, Bureaus, Units, and the like over which the Chief Administrative Officer has
authority pursuant to the City Charter or otherwise, including but not limited to the
Saggiomo, 18 -531
pHnFaO, 2018
Page 9
following: (1) Procurement Department; (2) Department of Records; (3) Office of Fleet
Management; (4) Human Resources and Talent Unit; (5) Office of Administrative
Review; (6) Bureau of Administrative Adjudication; 7) Office of Innovation and
Technology; (8) Office of Performance Management; (9) Contracts Legislation Unit; (10)
Department of Public Property; and (11) Office of Open Data and Digital
Transformation. Cf., Abernathy, Advice 12� -55588
Therefore, for the first year following termination of your employment with the
City, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a
"person" before your former governmental body as delineated above.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(8) only. It is expressly assumed that there has been no
use of authority of office or employment, or confidential information received by being n
the public position, for a private pecuniary benefit as prohibited by Section 1103_(a) of
the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics
Act provide in part that no person shall offer or give to a public official /public employee
and no public official /public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or Judgment of the public
official/public employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion. In the former capacity as a Project Director for the City of
Philadelphia ( "City ") Office of the Chief Administrative Officer, you would be considered
a "public employee" —and not a "public official " — subject to the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q., and the Regulations of
the State Ethics Commission, 51 Pa. Code § 11.1 et 0q, pon termination of your
employment with the City, you became a "former public employee" subject to Section
11 03(g) of the Ethics Act.
Based upon the submitted facts, the governmental body with which you are
deemed to have been associated upon termination of your employment with the City,
hereinafter collectively referred to as your "former governmental body," consists of the
City Office of the Chief Administrative Officer in its entirety and all City Departments,
Offices, Bureaus, Units, and the like over which the Chief Administrative Officer has
authority pursuant to the City Charter or otherwise, including but not limited to the
following: (1) Procurement Department; (2) Department of Records; (3) Office of Fleet
Management; (4) Human Resources and Talent Unit; (5) Office of Administrative
Review; (6) Bureau of Administrative Adjudication; 7) Office of Innovation and
Technology; (8) Office of Performance Management; (9) Contracts Legislation Unit; (10)
Department of Public Property; and (11) Office of Open Data and Digital
Transformation. For the first year following termination of your employment with the
City, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a
"person" before your former governmental body as delineated above. The restrictions
as to representation outlined above must be followed. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
Saiomo, 18 -531
April 30, 2018
Page 10
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a forma! Opinion will be issued by the Commission.
Any such appeal must be in writingg and must be actually
received at the Commission within thirty (30) days of the date of this
Advice ursuant to 51 Pa. Code § f3.2(h). The appeal may be
received at the Commission by hand delivery, United States mall,
delivery service, or by FAX transmission (717 - 787 - 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel